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Madhya Pradesh High Court · body

2008 DIGILAW 537 (MP)

MOHAMMAD RAFIK BHUTTO v. STATE OF M. P.

2008-04-04

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2008
Judgment S.K.Kulshrestha, J. ( 1. ) THIS petition, pro bono publico, seeks to enforce the provisions contained in the Madhya Pradesh Ancient Monuments and Archaeological Sites and Remains Act, 1964 and the Rules framed thereunder entitled The Madhya Pradesh Ancient Monuments and Archaeological Sites and Remains Rules, 1976 (hereinabove referred to as the Act and the Rules) and seeks a mandamus for removal of the unauthorised structures under Section 19(2) of the Act and execution of the order (Annexure P/7) passed by the Collector. In the year 1964, the Act was passed to provide for preservation of certain ancient and historical monuments and archaeological sites and remains and for the regulation of excavation of archaeological sites in Madhya Pradesh and matters ancillary thereto. Section 2(a) defines ancient monuments to be any building structure, erection, monolith or monument or any mound or tumulus or any tomb or place of interment or any cave or any sculpture or inscription on an immovable object which is of historical archaeological or artistic interest and which has been in existence for not less than hundred years. The definition also includes the monuments and remains as enumerated in clause (i) to (iv). For better appreciation of the controversy, Section 2(a) is reproduced herein under : 2.(a) "Ancient monument" means any building structure, erection, monolith or monument or any mound or tumulus or any tomb or place of interment or any cave or any sculpture or inscription en an immovable object which is of historical archaeological or artistic interest and which has been in existence for not less than hundred years, and includes, (i) the remains of such monument, (ii) the site of such monument, (iii) such portion of land adjoining the site of such monument as may be required for fencing or covering in or otherwise preserving the monument, and (iv) the means of access to, and convenient inspection of, such monument. ( 2. ) Section 2(c) defines "archaeological sites and remains" to mean any area which contains or is reasonably believed to contain ruins or relics of historical or archaeological importance which have been in existence for not less than hundred years. Clause (g) defines State protected area as an archaeological site and remains which is declared to be a State protected area under this Act. ( 3. Clause (g) defines State protected area as an archaeological site and remains which is declared to be a State protected area under this Act. ( 3. ) Section 3 empowers the State Government to declare ancient monument to be State protected monuments or archaeological sites and remains to be State protected area. Chapter VI of the Rules provides for restraining of mining operation and construction near State protected area. Rule 30 of the Rules contains the effect of declaration of prohibited or regulated area and reads as follows : 30. Effect of declaration or prohibited or regulated area.(1) Subject to the provisions of sub-rule (2), no person, other than the Director shall undertake, any mining operation or any other construction (a) in a prohibited area, or (b) in a regulated area except under and in accordance with the terms and conditions of a licence granted by the Director. (2) Where a mining operation intended to be undertaken (a) in a prohibited area or (b) in a regulated area is subject to the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 (LXVII of 1957) and the rules made thereunder no person shall undertake such mining operation in that area without the permission of the Director. (emphasis supplied) ( 4. ) The counsel for the petitioner has brought to our notice a Notification dated 10th March, 1999, No. F.6-10-97-CuI.99, whereby in exercise of the power under Rule 28 of the Rules, the State Government has declared the area upto 100 metres and further beyond it upto 200 metres from the protected limits near or adjoining of the protected monuments of the State as prohibited and regulated areas for the purpose of mining and construction as required by sub-Rule (1) of Rule 28 ( 5. ) The precise grievance of the petitioner is that by order (Annexure R/4), the Collector, Barwani has yielded to the political pressure and has restrained himself and the other authorities from proceeding in accordance with the Act and the Rules for removal of the construction around the Fort at Sendhwa. We may add that so far as the area within the Fort is concerned, it is not disputed that there are number of Departments of the Government and it also houses the Civil Court and other Government Offices. We may add that so far as the area within the Fort is concerned, it is not disputed that there are number of Departments of the Government and it also houses the Civil Court and other Government Offices. The learned counsel has pointed out that as per order dated 9th May, 2001 (Annexure P/12), the Collector had, in keeping with the provisions, issued directions and sought report of compliance by 11/1/2001, but surprisingly, the legal direction issued vide Annexure P/12 was more or less recalled by order Annexure R/4. According to the learned counsel for the petitioners, since no permission of construction or mining can be granted within the peripheral limits of 100 200 meters of the ancient monuments except in accordance with the permission granted under Rule 10(2), the letter of the Collector (Annexure R/4) is illegal and deserves to be quashed and a mandamus deserves to be issued to the respondents to enforce the letter Annexure P/12 and the other provisions of the Act. ( 6. ) Before considering the rival contentions it is necessary to record the contention of the learned Addl. Advocate General that after the letter Annexure P/12 was issued by the Collector directing removal / demolition of the illegal constructions within the peripheral limits of 100 - 200 metres from the boundary of the Fort at Sendhwa, a letter Annexure R/6-1 was sent by the local M.L.A., apprising the Government of the true situation prevailing in the area around the Fort at Sendhwa. It was pointed out that the Act was brought into force in the year 1964 while there were constructions dating back to half a century from the date of bringing into force of the Act. He has further pointed out that the Notification relied upon by the petitioner is dated 10th March, 1999 with the result the same will have no retrospective effect and, therefore, the constructions which have come up prior to the Notification relied upon by the petitioner, cannot be subjected to the provisions of the Act and the Rules prohibiting such constructions. He has also pointed out that subsequently, constructions have been made with the prior permission of the Municipality with the result the legal construction should not be disturbed merely because they are within the peripheral area of 100 metres from the Fort. ( 7. He has also pointed out that subsequently, constructions have been made with the prior permission of the Municipality with the result the legal construction should not be disturbed merely because they are within the peripheral area of 100 metres from the Fort. ( 7. ) We have heard the learned counsel for the parties and perused the record. The real issue raised by the petitioner, if understood in its proper perspective, is that while by Annexure P/12, the Collector, Barwani, directed obedience of the mandatory provisions of the Act and the Rules, he had to yield to the pressure of the Government on the basis of the letter of the local M.L.A. (Annexure R/6-1) and send the letter Annexure R/4, contrary to the desired steps to be taken vide Annexure P/12. ( 8. ) It is not disputed that the Government has the power under Rule 10 for grant of permission for construction. The said Rule provides that no person shall undertake any construction or mining operation within a State protected area, except under and in accordance with the permission granted in this behalf by the State Government. In view of the exception carved out by the statute itself, it is manifest that the limit of 100 meters or 100 - 200 meters is not sacrosanct and is subject to other regulatory provisions such as the one contained in Rule 10. Therefore, the contention of the learned counsel for the petitioner that once a Notification u/S. 28 has been issued and u/S. 29 an area has been declared as prohibited or regulated area, the provisions of the Act and the Rules become operative without any power to cause infraction of the said Notification, does not appeal to us. When the provisions of the Act and the Rules are harmonised, the Notification is issued only for regulating the activities in the area and not for total ban on constructions within the area. Had it been that no construction can be made within the prohibited area, the provision contained in Rule 10 would have become otiose. ( 9. ) Coming to the facts of the case, the grievance of the petitioners is with regard to the constructions being made outside the southern wall of the Fort by the local municipality. This grievance was raised in the year 2001 after having lost in appeal filed to the State Government u/S. 19(2). ( 9. ) Coming to the facts of the case, the grievance of the petitioners is with regard to the constructions being made outside the southern wall of the Fort by the local municipality. This grievance was raised in the year 2001 after having lost in appeal filed to the State Government u/S. 19(2). We have already observed that the declaration under Rr. 28 and 29, does not divest the State Government of the power to grant permission for construction even within the prohibited area. The counsel for the respondents has invited our attention to the document Annexure R/2, a letter of the Government, dated 19th April, 2001, granting permission to the Nagar Palika to construct shops near the Fort. Under these circumstances, the grievance of the petitioners that the shops are being illegally constructed near the southern wall of the said Fort, is illusory. We are, therefore, not inclined to accept the grievance of the petitioners with regard to the construction of the shops near the southern wall of the Fort. ( 10. ) However, since a general allegation has been made by the petitioners about the constructions within the prohibited area without the permission of the Government, as required under Rule 10(2) of the Rules, we are of the view that the Collector of the District shall now ensure that no construction is permitted in area except in accordance with the provisions of the Act and the Rules and the other provisions of law regulating such permission. ( 11. ) With the above observation, and the direction to the State Government and the Collector to restrain such constructions, as do not comply with the provisions, tins petition is disposed of with no order as to costs. The amount of security deposit be refunded to the petitioner, on due verification. Petition disposed of.